Bruce Wheatley in His Capacity as of the Estate of Judith Wheatley v. Dake Farket Ub Gus Capacity as Dependent Administrator of the Estate of Judith T. Wheatley ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
BRUCE WHEATLEY IN HIS §
CAPACITY AS EXECUTOR OF THE No. 08-18-00106-CV
ESTATE OF JUDITH WHEATLEY, §
Appeal from the
APPELLANT/CROSS-APPELLEE, §
Probate Court No. 1
V. §
of El Paso County, Texas
DALE FARLEY IN HIS CAPACITY §
AS DEPENDENT ADMINISTRATOR (TC# 2014CPR01539)
OF THE ESTATE OF JUDITH T. §
WHEATLEY,
§
APPELLEE/CROSS-APPELLANT.
§
OPINION ON MOTION
Appellant/Cross-Appellee, Bruce Wheatley, in his capacity as Executor of the Estate of
Judith T. Wheatley (Wheatley), filed a motion requesting that the Court order Appellee/Cross-
Appellant, Dale Farley, in his capacity as Dependent Administrator of the Estate of Travis B.
Kirchner (Farley) to post a supersedeas bond in an amount to be set by this Court. Wheatley is
effectively challenging the Probate Court’s order that Farley is exempt from posting a supersedeas
bond because he is the court-appointed dependent administrator of the Kirchner Estate. See
TEX.R.APP.P. 24.4. Although we requested a response, Farley has not filed one.
Following a jury trial, the Probate Court granted judgment in favor of both parties and each
of them has appealed. Pertinent to resolution of Wheatley’s motion, the judgment awarded the
sum of $500,000 for the reasonable value of work performed by Judith Wheatley for Travis
Kirchner. Wheatley contends that Farley is required to post a supersedeas bond in order to suspend
the judgment pending appeal. He also takes issue with our interpretation of Section 351.002 of
the Estates Code in an unrelated case and the Probate Court’s application of that statute here.1
Rule 24.1 of the Texas Rules of Appellate Procedure addresses the methods for superseding
a judgment, including the filing of a supersedeas bond. TEX.R.APP.P. 24.1(a). In civil cases, the
filing of a notice of appeal does not suspend enforcement of the judgment, and enforcement of the
judgment may proceed unless: (1) the judgment is superseded in accordance with Rule 24.1; or
(2) the appellant is entitled to supersede the judgment without security by filing a notice of appeal.
TEX.R.APP.P. 25.1(h).
Section 351.002 provides that an appeal bond is not required if an appeal is taken by an
executor or administrator, unless the appeal personally concerns the executor or administrator.
TEX.ESTATES CODE ANN. § 351.002(a), (b). Wheatley argues that an “appeal bond” is not the
same as a “supersedeas bond,” and therefore, Section 351.002 does not operate to excuse Farley
from the requirement that he post a supersedeas bond to suspend the judgment pending appeal.
We agree with Wheatley that an appeal bond and a supersedeas bond are two different types of
bonds and they serve different functions. Nevertheless, as seen in the Supreme Court’s decision
in Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 480-82 (Tex. 1964), the exemption of
executors and administrators from the requirement that they give security for costs on appeal is
significant in determining whether they are required to post a supersedeas bond.
1
In an order denying a Rule 24.4 motion, we ruled that two co-executors were not required to post a supersedeas
bond to supersede the judgment because the appeal did not personally concern them. See In the Matter of the Estate
of Richard C. Poe, Deceased, No. 08-18-00015-CV. The order did not cite to Ammex Warehouse Company v. Archer,
381 S.W.2d 478 (Tex. 1964) nor did it fully explain the basis for our reliance on Section 351.002. Contrary to the
Probate Court’s interpretation of our order, we did not state that an appeal bond and a supersedeas bond are the same
thing. This opinion is intended to clarify the application of Section 351.002 to appeals taken by executors and
administrators.
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In Ammex Warehouse, the Supreme Court held that the State had a right to suspend
judgment without filing a bond upon perfecting its appeal by giving proper notice of appeal.
Ammex Warehouse, 381 S.W.2d at 480-81. In reaching this conclusion, the Supreme Court
focused on former TEX.REV.CIV.STAT.ANN. art. 2276 which provided that:
Neither the State of Texas, nor any county in the State of Texas, nor the
Railroad Commission of Texas, nor the head of any department of the State of
Texas, prosecuting or defending in any action in their official capacity, shall be
required to give bond on any appeal or writ of error taken by it, or either of them,
in any civil case.
Executors, administrators and guardians appointed by the courts of this
State shall not be required to give bond on any appeal or writ of error taken by them
in their fiduciary capacity.
Since Article 2276 generally exempted the State from the requirement to give bond on any appeal,
the Supreme Court reasoned that the State is not required to file a supersedeas bond to suspend
judgment on appeal. Ammex Warehouse, 381 S.W.2d at 481. In 1985, the Legislature repealed
Article 2276. See Acts 1985, 69th Leg., R.S., ch. 959, § 9(1), 1985 TEX.GEN.LAWS 3242, 3322.
The specific provision at issue in the Ammex Warehouse case is now codified in Section 6.001 of
the Civil Practice and Remedies Code.2 In Richards v. Mena, 820 S.W.2d 371 (Tex. 1991), the
Texas Supreme Court adhered to Ammex Warehouse, and citing Section 6.001, held that the filing
of notice of appeal by the State suspended the judgment.
The Thirteenth Court of Appeals applied the Ammex Warehouse reasoning to former
Section 29 of the Probate Code3 and held that co-executors of an estate were not required to post
a supersedeas bond in order to suspend the judgment pending appeal. Vineyard v. Irvin, 855
S.W.2d 208, 212 (Tex.App.—Corpus Christi-Edinburg 1993, orig. proceeding). Similar to former
2
See Acts 1985, 69th Leg., R.S., ch. 959, § 1, 1985 TEX.GEN.LAWS 3242, 3244-45 (current version at TEX.CIV.PRAC.
& REM.CODE ANN. § 6.001).
3
See Acts 1955, 54th Leg., ch. 55, amended by Acts 1993, 73rd Leg., ch. 957, § 15, 1993 TEX.GEN.LAWS 4081,
4163. Former Section 29 is now codified at TEX.ESTATES CODE ANN. §§ 351.002 and 1152.002.
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Article 2276, the version of Section 29 at issue in Vineyard provided that “[w]hen an appeal is
taken by an executor, administrator, or guardian, no bond shall be required, unless such appeal
personally concerns him, in which case he must give the bond.” See Vineyard, 855 S.W.2d at 212.
The Vineyard opinion does not expressly state whether the appeal personally concerned either of
the co-executors.
The Texarkana Court of Appeals also construed former Section 29 as exempting an
executor from filing a supersedeas bond to prevent execution of the underlying judgment pending
appeal unless the appeal personally concerned the executor. See In re Shore, 106 S.W.3d 817, 821
(Tex.App.—Texarkana 2003, orig. proceeding). In Shore, the record showed that the executor
was a devisee under the will and a ruling concerning the disposition of the estate’s property among
all the devisees under the will, if successful, would result in an increase in the executor’s
proportionate share of the estate as devisee. See In re Shore, 106 S.W.3d at 821. Consequently,
the Texarkana Court of Appeals held that the executor was required to post a supersedeas bond
because the appeal personally concerned him within the meaning of Section 29. Id.
We recognize that Section 351.002 refers to “appeal bond” rather than the more general
term “bond” that appeared in the predecessor statute, but it was well understood that Article 2276
concerned the requirement that the appellant give security for costs on appeal by filing an appeal
bond. See Wilson v. Thompson, 162 Tex. 390, 391, 348 S.W.2d 17, 17-18 (1961)(addressing
whether Article 2276 relieved the trustees of a common school district and district trustees of a
rural high school district from filing an appeal bond); Wallace v. Adams, 243 S.W. 572, 574
(Tex.Civ.App.—Texarkana 1922, writ dism’d w.o.j.)(observing that: “The state may appeal
without bond; so may guardians and administrators; yet the judgments from which such appeals
are prosecuted are automatically suspended without any specific statutory directions that such shall
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be the result.”).4 We hold that when an executor or administrator of an estate appeals, he or she is
not required to post a supersedeas bond unless the appeal personally concerns the executor or
administrator. See Ammex Warehouse, 381 S.W.2d at 481; In re Shore, 106 S.W.3d at 821;
Vineyard, 855 S.W.2d at 212. The Probate Court’s order does not expressly state whether the
appeal personally concerns Farley, but the record reflects that Farley is a court-appointed
administrator who has no personal interest in the estate. Consequently, Farley is not required to
post a supersedeas bond to suspend the judgment and his filing of a notice of appeal operated to
suspend the judgment. See TEX.R.APP.P. 25.1(h). Wheatley’s motion to require Farley to post a
supersedeas bond is denied.
June 5, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
4
This decision was cited with approval in Ammex Warehouse, 381 S.W.2d at 481.
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